In England and Wales, Enduring Powers of Attorney (EPAs) were replaced by Property and Financial Affairs Lasting Powers of Attorney (LPAs) in 2007, following the introduction of the Mental Capacity Act 2005 (MCA 2005).

Reasons for the change included:

• There was no guarantee that the person who made the EPA had sufficient capacity;
• As registration was only needed when the attorney believed that the person making the EPA had become (or was becoming) mentally incapable of manging their affairs, EPAs were open to abuse from an unscrupulous attorney; and
• The EPA did not allow for the delegation of health and care decisions.

What is the procedure for putting in place an LPA?

Before being able to decide whether you should change your EPA for a Property and Financial Affairs LPA, you need to consider the new procedure for putting in place an LPA, which is as follows:

• Fill in the LPA form and sign it.
• Choose someone to sign as a ‘Certificate Provider’. The Certificate Provider must check the MCA 2005 conditions are satisfied must check the MCA 2005 conditions are satisfied and confirms that the person making the LPA has capacity, understands the LPA, and is not creating it because of undue influence or pressure. The Certificate Provider can be someone who has known the person making the LPA for at least two years or someone with the appropriate professional skills, such as a GP or lawyer.
• Ask the attorney(s) to sign the LPA form.
• Register the LPA with the Office of the Public Guardian. This last step costs £82 (unless you qualify for a fee exemption or remission) and the LPA needs to be registered before the attorney(s) can act. The LPA does not have to be registered immediately, but it is sensible to do so, to avoid any delays.

Should I change my EPA to an LPA?

So should you change your EPA to a Property and Financial Affairs LPA? In general, the answer to this question is that there is no ‘need’ to change an EPA that has been competed correctly, but there may be some virtue in doing so.

The more in-depth LPA form directs you to think through matters that were not addressed, or were not even an option, within the EPA form, such as:

• Naming backup attorney(s);
• Stating instructions to the attorney(s) – be it positive or negative, eg ‘you must do’ or ‘you cannot do’;
• Expressing preferences to the attorney(s) – general thoughts and wishes as to how you would like your financial affairs conducted; and
• Requesting that notice is given to someone when registration takes place, if registration does not take place immediately.

What about Health and Welfare LPAs?

This article focuses on EPAs and their replacement, Property and Financial Affairs LPAs. But don’t forget that you can also put in place a Health and Welfare LPA to give your attorney(s) power to take health and social care decisions on your behalf.

You can find more information on LPAs in the leaflet ‘Why make a Lasting Power of Attorney?’

Philip Warford TEP is Managing Director of Renaissance Legal, Brighton, UK